Homeland Security Appeals Air Marshal Whistleblower Case

By Charles S. Clark

July 11, 2013

In the latest turn in a lengthy whistleblower case, the Homeland Security Department on Wednesday appealed an April court ruling that favored fired Transportation Security Administration civil aviation specialist Robert MacLean.

Parties were notified that the government had petitioned for an en banc, or full court, rehearing.

MacLean was dismissed by TSA for providing “sensitive security information” to television news reporters in 2003 and 2004, after the agency made a controversial move to reduce the number of air marshals on flights. This April, the U.S. Appeals Court for the Federal Circuit ruled that MacLean’s disclosure was “not specifically prohibited by law,” thus vacating a decision by the Merit Systems Protection Board and remanding the case back to MSPB for a ruling on whether his actions qualify for protection under the Whistleblower Protection Act.

Tom Devine, legal director for the nonprofit Government Accountability Project, which represents MacLean, told Government Executive that his group “will defend Mr. MacLean’s victory in any context that’s necessary to achieve justice, whether it’s further court appeals or enforcement of court orders.”

Whistleblower advocacy groups and several lawmakers had hailed the April ruling for what they viewed as restoring enforceability for the Whistleblower Protection Act’s public free speech rights.

The MSPB had argued that Congress had delegated its authority to the Homeland Security secretary, which made the department’s regulations equivalent to statutes, and hence MacLean’s disclosure violated law, making him ineligible for whistleblower protection.